Saturday, September 20, 2014

The Regulatory State: An Engine of Minority Repression

Swarms of armed police
invaded nine barbershops in Orange County, Florida, with as many as 14 armed
agents involved. The shops had one thing in common—they catered to black or
Hispanic patrons. Of course, it could be a coincidence.

The police entered
without warrants. This was allowed because they accompanied agents of the
Department of Business and Professional Regulation, who are allowed to enter
any barbershop at will.

This is one example of
how regulatory powers can be used to target minorities on behalf of the police,
in ways that would not be legal otherwise. Thirty-seven people were arrested; the
majority accused of “barbering without a license.”

Florida police claimed
the raids were a general campaign singling out criminal “hot spots.” None of
those arrested appear to be guilty of a real crime—one with a victim.
Thirty-four of the 37 arrested were ONLY charged with the “crime” of barbering
without state permission. The remaining three were charged with victimless
crimes; such as owning a gun without permission, or possession of illegal substances—small
amounts of marijuana in these cases.

Capt. Dave Ogden, who
commands the area where these raids were conducted, justified arresting people
for barbering because: “It was a misdemeanor crime being conducted in our
presence. We decided to make arrests.”

Barbershops play a special
role in the black community. Books have even been written about how they were
seen ad community centers and places where individuals would gather to discuss
the community and matters of politics. On black publication, writing about a
similar raid, said police raids like this “attacked one of the Black
communities most sacred institutions: the barbershop.”

Considering the social
role of black barbershops one might wonder why such a massive show of force was
necessary for petty offenses, offenses so petty that many people didn’t realize
they are illegal. The Orlando Sentinel wrote:

If you didn't know cutting hair
without a license was a crime, you're not alone. An arrest for barbering
without a license is not just unusual—in the state of Florida, it's nearly
unheard of.

Florida Department of Law
Enforcement records turned up only 38 jail bookings on the misdemeanor charge
across the entire state in the past 10 years—and all but three of those
arrests occurred during Orange County operations during the past few months.

Most of the barbers charged with
licensing violations as a result of the sheriff's operationpleaded no contest and were ordered
to pay fines of about $500—which is about equal to the ones inspectors issue
when a barber or stylist has an expired license.

A licensing inspector determined
that Strictly Skillz was in compliance and everyone working had a valid license
displayed in plain view—but not before barbers said they spent an hour
sitting in handcuffs.

Abrams, who works at Barber Kings
in Pine Hills, said he knew his license wasn't current when inspectors entered,
and he expected a slap on the wrist and a fine.

When he and the eight others arrested at Barber Kings
that day got to jail, "everybody laughed at us," Abrams said.
"Even the judge was like, 'Are you serious?'"

In some cases the arrest
came, not because the individual is unable to barber adequately, but because a valid
license had expired. The issuing of annual licenses does NOT protect the public,
it is a revenue-gathering exercise unrelated to “consumer protection.” If the ability
to barber were the issue, a once-off license would be sufficient.

Police claimed they
targeted these shops due to a history of “a lack of cooperation with state
inspectors” and “a history of criminal activity.” But the Sentinel says that
records do NOT support this claim. One has to wonder if racial assumptions or
prejudices did not play a role in these raids, especially given the lack of
substantive criminal charges.

California Cops Ignore the Fourth Amendment As Well

In Moreno Valley, CA, police teamed up with the
California Board of Barbering and Cosmetology and “conducted a series of
racially-targeted, warrantless raids on barbershops owned and patronized by
African Americans under the false pretext that the searches were solely part of
a health and code inspection.” The good people at the ACLU stepped in and sued
on behalf of the victims of this racial profiling under the pretext of
“regulation” enforcement.

The suit filed by the American Civil Liberties Union
of Southern California and Seyfarth Shaw LLP details how armed police officers,
accompanied by city and state inspectors, burst into barbershops without
warning last year. The officers then carried out extensive searches unrelated
to any potential health or code violations in a clear example of racial
profiling.

"The Moreno Valley police unmistakably targeted
these businesses because their owners and clientele are African American. There
was no evidence of criminal activity at these locations and no reason that these
once-thriving businesses were singled out other than racial profiling,"
said ACLU/SC Staff Attorney Peter Bibring. "These raids were a blatant
violation of these business owners' civil rights and reminiscent of a dark era
in our own shameful past that should never be repeated again."

On April 2, 2008, five Moreno Valley police officers,
carrying guns and wearing body armor, swarmed the Hair Shack, where Kevon
Gordon has been in business for more than 20 years, with two city code officers
and three inspectors from the California State Board of Barbering and
Cosmetology. In an atmosphere more akin to a narcotics raid than a civil code
and business inspection, officers blocked the entrances, questioned employees
and rummaged through the storefront business.

"Officers treated my employees and customers like
criminals simply because of the color of our skin. It was sickening,"
Gordon said. "I have lost good customers and had my reputation called into
question in a community where I've been working for 20 years. I wouldn't wish
this on anyone."

That day officers also targeted four other African
American barbershops, including Fades Unlimited. At Fades Unlimited, officers
went further in running criminal warrant checks on barbers and customers. When
one barber objected to this treatment, an officer handcuffed him and detained
him in a police car for 10 minutes before finally freeing him.

Gordon told media that until the day of the raid his
only contact with police had been to cut their hair. Just as he was finishing a
haircut for a customer “all of a sudden nine people ran in. There were police
in body armor. I said, ‘What’s going on?’ and they demanded to see my ID and
ran a warrant check on me. They asked my clients if they were felons. It went
on for 45 minutes and then they just left.” The barber’s attorney argued,
“police were using the business inspection as a pretext to look around for
evidence of criminal wrongdoing with no reason to do so.” He said he hoped a
lawsuit would “make sure the police don’t use business or health inspections as
a way to get around requirements for obtaining search warrants.”

The Moreno Valley raids failed to turn up
substantive criminal activities, which is not to say barbers were not charged
with offenses. But the offenses included such crimes as “failure to show an
independent contractor’s business license, failure to label supply cabinets and
towel drawer offenses.”

Apparently police realize that search warrants for
fishing expeditions are impossible to obtain, so they “cooperate” with agents of
regulatory bodies and accompany those agents, who are exempted from needing
search warrants. Under the “umbrella” of the regulatory body the police engagein actions that are normally illegal. Ray Butler, a black barber in Moreno
Valley who was not targeted that day, was furious, “Cosmetology inspectors
fronting for police is virtually unheard of in any state.” Of course, it was
only a short time later that police in Florida used the same ruse.

Regulations and Racism

Licensing laws are often
used as an excuse to exclude competition. Entrenched special interest groups
push for regulations to keep out upstarts. Often the laws are just out-dated
regulations that refuse to take into account changing cultural patterns. For
instance, many states continue to require hair braiders to have a state
license. This requires them to spend hundreds of hours attending courses that
cover everything except the trade they actually practice, and it requires them
to pay out thousands of dollars in order to do so.

The Institute for
Justice reported that numerous states require braiders of hair to have
cosmetology licenses that are not applicable to their actual profession.
Obtaining the license requires hours of expensive cosmetology courses. In Iowa
a license can be obtained after taking 2100 hours of training. In Idaho it is
2000; Illinois, 1500; New Jersey, 1200; Utah, 2000 and so on. In Alaska a
braider not only needs 1,650 hours of coursework, but another 2,000 hours as an
“apprentice.” The Institute says these courses can cost between $5000 and
$15,000 and that “the training is often completely unrelated to African hair braiding.”

These laws were once
only applied to highly specialized fields but have since been applied to
“professions for which the justification of entry barriers is virtually
nonexistent, hampering even would-be interior decorators, casket retailers and
florists. A closer examination reveals that legislatures are often motivated
not by the public good but rather by private interests that seek to protect
themselves from competition.”

The Institute also looked at the racist
implications of taxi licensing laws in places like New York City. Residents of
black areas of the city find it difficult to hail a taxi at all; the licensed
taxis simply refuse to serve the poorer areas of the city. Instead a network of
illegal, unmarked “gypsy” or “jitney” cabs serves the areas. Marcus Cole, a law
professor at Stanford University, explains how government regulations deny taxi services to black areas:

Like many other large cities, New York City
confers upon a select number of companies an artificial monopoly in the right
to pick up passengers on the street. This right flows from the ownership of a
taxicab medallion, which is required in order for a taxi to carry passengers
other than those that are assigned by a radio dispatcher. Currently, the City
of New York allows just over 11,000 of these precious medallions to be held by
cab companies. Ownership of the medallion, which is visibly attached to the
hood of the vehicle by way of a large rivet, also entitles the taxicab to be
painted yellow, thereby communicating to all the world that this cab is one of
the select few to have curbside pick-up rights.

This artificial monopoly exists, purportedly, to allow New York City to
regulate taxicabs. There is, however, no logical nexus between the need to
regulate taxicabs and the imposition of an artificial quota on the number of
cabs. Even the oft-cited concern about street congestion cannot justify this
arbitrary barrier to entry. Taxicabs can be regulated like any other business,
without the creation of arbitrary limits on their numbers. New York regulates
restaurants, too, but does not fix the number which may exist in the city at
any one time. The market does this. If there is insufficient demand to support
additional restaurants, additional restaurants will not be opened. This is true
for any supply, including the supply of taxicabs.

By limiting competition,
taxi regulations reduce the cost of discrimination. Prof. Cole wrote: “Cab drivers who harbor
racist attitudes are suddenly protected from the competitive forces that would,
under normal circumstances, punish them monetarily for acting upon those
attitudes. The medallion monopoly provides the hood by which these racist
attitudes are shielded from the light of the marketplace.”

Because of the artificial scarcity of the taxi medallions these items
now trade “for hundreds of thousands of dollars.” This does two things. First,
it means that the favored few who own these licenses will lobby hard to keep
regulations in place as a means of restricting competition, which not only
increase their profits but increases the value of their medallions. Secondly,
the high prices for medallions act as an effective means of keeping competitors
out, especially competitors who come from the poorer sections of the city.

Regulations and the Assault on Gay People

The high cost of regulatory compliance is an effective means of
implementing Jim Crow legislation, even if that was not the initial intent of
the regulations. High entry costs effectively keep racial minorities out of the
regulated professions.

Blacks are not the only minority to feel the sting of police cooperation
with “regulatory” agencies.In
Forth Worth police teamed up with agents for the Texas Alcoholic Beverages
Commission to “inspect” a newly opened gay club, the Rainbow Lounge, for compliance with liquor
regulations. But eyewitnesses reported that the police came into the bar in full force and immediately began manhandling patrons. One customer was pushed
so hard against a wall he suffered brain injury as a result.

One ironic touch was they had conducted this raid on the 40th
anniversary of the Stonewall Inn riots. It was there that New York City police
conducted another “routine” raid on the Stonewall, a bar catering to gay
clients. That time the clients resisted and the modern gay rights movement was
born.

After initially defending his officers the Fort Worth police chief was
soon learning that police accounts of events weren’t accurate. The TABC was
embarrassed by the excessive force used by police and put their liquor control
agents, who acted as the front men for the raid, on desk duty while an
investigation was carried out. One patron says of the police: “They were hyped
up. They came in charged and ready for a fight.” The defensive police made
false allegations that patrons openly groped uniformed police officers—a charge
that seems highly unlikely.

Under media scrutiny police stories kept changing. After Chad Gibson was
hospitalized the police claimed he had originally been injured by an accidental
fall. Witnesses told a very different story. Gibson was standing watching the
raid, while holding a bottle of water. An agent came to him and placed a hand
on his shoulder indicating he was under arrest. Gibson asked why. The response
was to slam Gibson into the wall. A TABC agent and two police officers then
jumped him as he lay on the floor. A witness recounted that a police officer
grabbed Gibson and slammed his head into the floor.

An investigation by
the TABC found that “TABC employees violated various agency policies.” Among
the violations TABC agents were working with the police “without approval.” In
addition agents are required to file reports any time they use force against
individuals during a raid. None of the agents did so—but at that time their
story was that the injured patron “fell” accidentally. The three TABC agents
who assisted police were terminated.

Unlicensed Dancing Leads to Gay Attack

In Atlanta police used “licensing” laws as an excuses to raid another
gay club. The club had dancers on stage dancing in their underwear and police
claimed this required an “entertainment” license. Also required for such a raid
would be a warrant, something the police failed to obtain. Yet, without a
warrant police not only searched the entire club, but hand searched every
patron—even those who refused to give permission to do so.

To enforce the licensing requirement for dancers the police attacked the
club with 21 officers who entered the club while others remained outside. The
police also intended to arrest a
large number individuals as they brought three paddy wagons with multiple squad
cars to haul away their catch. The officers who conducted the raid were part of
a SWAT team which focuses on the so-called “war on drugs.”

Police
justifications for the raid changed on an almost daily basis. Police first claimed
it was drug bust, yet no drugs were located in the bar or on any of the
patrons. Police Chief Richard Pennington then said that the raid was justified
because dancers “must have a license, and if the dancers accept money for
dancing that also requires a permit. The business does not have a license for
either and that was the premise of the arrest.” Lewd activities were claimed by
the police as well but no such charges were ever filed. The only crime that was
stamped out that night was related to dancing “without a permit.”

A review of the raid by the Atlanta Citizen’s Review Board determined
that the police were acting in violation of the law.When police were asked about rights they allegedly
responded: “you are a fag and you have no rights.” Another police officer was
heard saying that “raiding a fag bar was fun and they should do this every
week.” The Review Board found multiple witnesses who heard these or similar
remarks. The police denied any such remarks were made, but the Board, after
considering the evidence, “voted to sustain the allegation of abusive
language.” Elsewhere patrons reported that one office joked, “this is more fun
than raiding niggers with crack.”

Numerous patrons
filed complaints that they too suffered abusive language and were “falsely
imprisoned” by the officers. Patrons were forced to lie down on the floor and
were detained between one half hour and an hour. The Board said that none of
the 24 officers indicated, “that any of the patrons who made complaints
committed an offense.” The Board
also said the evidence supported the claims by the patron’s that they were
verbally abused and voted “to sustain the allegation of unlawful imprisonment
against all the officers who were present.” The Board said the police officers
had “no articulable suspicion or probable cause to believe that the patrons
committed or were about to commit a crime.”

Civil suits against the police for the raid have, however, run into
problems. The Atlanta Journal-Constitutionreports, “that evidence was purposely
destroyed” by police. “Electronic backups of emails were recorded over. Text
messages and photos taken on cell phones are simply gone. According to court
documents, the cell phone data was erased just days after U.S. District Judge
Timothy Batten ordered the data turned over to the Atlanta Eagle’s lawyers.”

And, all of this started under the pretext of enforcing a regulation
requiring dancers to have a license. The Journal-Constitution reported: “Eight
people were charged with city ordinance violations involving licensing; three
of them were acquitted and the charges against the other five were dropped
earlier this year.” Based on the evidence it appears the police used
“licensing” regulations as the excuse for the raid, seemingly motivated by
animus toward gay people. Searching patrons was a fishing expedition hoping to
find drugs to justify the raid after the fact. The police ran into problems however.
In spite of searching 62 patrons and the premises they couldn’t find illegal
drugs anywhere.

The reality is that police forces in this country still harbor
individuals who use their positions to express their own bigotry. These
individuals find it quite easy to use the web of licensing laws and regulatory
rules to harass individuals they dislike. They are able to use the power of the
State to indulge their own prejudices. This appears to be the case in the
Atlanta and Forth Worth gay raids as well as the cases with the Florida and
California barbershops. It is also clear that police are using licensing regulations
in order to do an end-run around the Fourth Amendment.

In addition, various special interests use the regulatory process to
skew the system to redistribute wealth in their own direction while harming
identifiable minority groups in the process. This is the case in many of the
licensing laws which restrict access to professions thus limiting competition
and raising profits for those entrenched in these restricted
occupations—something that happens with both taxi and hair braiding licensing.

Politicians are
attracted to these laws because they are a means of raising revenue for the
state. In addition, they are heavily lobbied by the various public and private
groups that benefit from the regulations, sometimes in the name of “protecting
the consumer” from some imagined problem. But, once in place the regulations
and licensing requirements are easily turned to other darker agendas and often
it is vulnerable minority groups who suffer most.